Be more careful with Tweets™ now
“COULD YOU take down that screenshot of my Tweet? It's private and it breaches my copyright." OK then. But... there's an interesting question there: and the answer may be changing. That may affect journalists told to compile stories from sequences of Tweets, for example.
When can you copy a Tweet™? Is it even copyrightable?
And - of more concern to Twitter™ users than to journalists per se - are screenshots of Tweets™ allowed?
It used to be a good rule of thumb in UK law that a headline was too short to attract the protection of copyright. (This was before the days when all online headlines were topped and tailed with "Several things that will astound you about..." and "...here's why!") And a Tweet is roughly a headline, is it not?
Then came a July 2011 judgement in a case brought by the Newspaper Licensing Agency, which concentrates on paying money to owners rather than to freelances, against Meltwater, which owns "media monitoring" operations that sell lists of headlines. Yes, the court ruled, collections of headlines, each as short as 11 words, were protected by copyright.
A Tweet using all the traditional 140 characters is 22 words of average English. We'd say that puts the average traditional Tweet firmly in the grey area.
Long Tweets are different
And we'd predict that a court would say that a new-style 280-character Tweet was copyrightable. That'd be a matter for the court, in the end, of course.
But who owns and who can license the copyright? It's time to dig out your contract with Twitter: its Terms of Service. "You retain your rights to any Content you submit, post or display," these proclaim - and then of course go on to claim a blanket licence to do what the Twitter corporation wants with that content, and to license others to do unspecified stuff.
So: are newspapers, blogs and so forth thus licensed as "third parties" under that contract? Possibly. More digging reveals Twitter's Developer Agreement and Policy - which covers use of its API (Application Programmer Interface) to display its content. Using the API, as we understand it, would include inserting code (a specific kind of link) into a newspaper website that is structured as an instruction to Twitter to "include" or "embed" a Tweet here in the page.
This Developer Agreement says that Twitter grants you a licence to "Copy a reasonable amount of and display the Content on and through your Services to End Users..." So it looks as though the Tweeters granted Twitter a licence to grant this licence... and that this says you're OK in law. But keep reading...
The people who wrote the Tweet may grumble, justifiably or otherwise, even if they can't actually afford to go to court to challenge Twitter's contract.
This reassurance assumes, of course, that they did in fact have a licence to use everything they Tweeted: if they used a photo without permission they're in breach of their contract with Twitter and the photographer or agency could certainly take action against them - or against you if you reproduce the unlicensed copy.
Everyone needs to be aware that if they give someone permission to Tweet a photo, for example, according to this reading of Twitter's Terms so far they are granting a lot more people a "licence" to do a lot more.
If you copy Tweets in any other way, things get more complicated. The Developer Agreement and Policy seems not to cover copying and pasting the content of a Tweet. If you do so and want to maintain the appearance of a Tweet, however, you run into issues with the corporation's trade marks. So the safe way to do so is meet the terms of the Display Requirements. (This is one of
three agreements embedded in the Developer Agreement, but appears to have effect on its own). Meeting the terms of the Display Requirements without using the API is a faff, to put it mildly.
But what's this?
And another reason that you may not be allowed to use a Tweet is that the Display Requirements say right at the top:
(Note that, in some cases, permission from the original content creator may still be necessary, as Twitter does not provide permission to use third party/user content.)
This appears, on the face of it, to contradict the Terms of Service. Everything is clearly in a grey area, at least.
So, no screenshots then?
Now we're looking at the Display Requirements, it appears they attempt to prohibit displaying a screenshot of a Tweet - on Twitter or elsewhere online. They specify very precisely, for example, that all the clickable/tappable links must work. This is hard to do on a screenshot on a website and probably impossible on a screenshot on Twitter.
This raises interesting questions about the historical record. Taking and reposting a screenshot is the traditional way to maintain a record of a Tweet made by a well-refreshed politician, for example, which is likely to get deleted.
So it is important to clear up whether the corporation actually means to prohibit screenshots. Let's ask:
Depending on any response, this may need to be challenged.
The Display Requirements are written as a policy, not a contract, and do not specify what Twitter would do to you if you break them. Action for abuse of trademark seems likely.
(Printing Tweets and using them in broadcasts are explicitly permitted, the main conditions being that you do so in full and unaltered.)
Quoting in books, scholarship and investigations
Increasingly, it will be necessary to quote Tweets in biographies and in exposés of public figures. It would be prudent to quote only the words, in the run of text. (This also avoids a design horror.)
Here, it seems clear that the copyright remains with the person who wrote the Tweet. And it seems clear that a long-form Tweet - and particularly a largish sequence of them - is protected by copyright.
Whether you can use it despite that and without their permission depends on whether your use falls within the "exceptions" to copyright. See the Things you should know about &quor;quoting&quor; guidelines.
It's worth saying here that in UK law the exception to copyright permitting quotation for the purpose of reporting news and current affairs does not permit the "quotation" of photographs. So don't.
- Article amended 28 October 2017: There are in fact eight contracts and policies incorporated by reference into the Developer Agreement, not three. We knew that, but then a person from Porlock came... We still haven't counted all the documents that they incorporate.